“I do not see how they can possibly be said to be a ‘fair and accurate report’ of the Judgment when the essential underlying statement i.e. that there was a legal requirement on the claimant to cancel the Shaikan PSC, did not appear in the Excalibur Material and, further, the Article did not say what the Judgment did state that the claimant had done in the circumstances for the benefit of KRG i.e. ensure that the benefits under the [Representation Agreement] actually went to KRG (and not to Dabin or GKP/GKI) being somewhat equivalent of a forfeiture of them.”
“Statements having qualified privilege without explanation or contradiction … 2. A fair and accurate report of proceedings in public before a court anywhere in the world. … 5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.”
“A fair and accurate report or summary of, copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph by order of the Lord Chancellor.”
“… fairness and accuracy are matters of substance not form. A report does not need to be verbatim. It may to an extent be impressionistic. Fairness is to be tested by reference to the impact on the claimant’s reputation. Minor inaccuracies will not deprive a defendant of the privilege.”
“If a newspaper seeks to rely on the privilege attaching to a parliamentary paper, it can print an extract from the parliamentary paper and can make any fair comment on it. And it can reasonably expect other newspapers to do the same. But if it adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has ‘put the meat on the bones’ and must answer for the whole joint.”
“22. …(ii) one of the requirements of a fair and accurate report is that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege is claimed; … 28. Fairness can also be lost by the presence of extraneous material. This proposition is supported by a memorable passage in the speech of Lord Denning in the Dingle case… 34 … Lord Denning clearly thought that in the absence of over-embellishment the passages which merely contained a fair and accurate report would be privileged and outside the scope of liability for defamation. … 35 The position, therefore, is, as Kirby J observed in the High Court of Australia in Chakravarti v Advertiser Newspapers Ltd(1998) 193 CLR 519 , para 153 that: ‘Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege.’ 36 Thus I conclude that reporting privilege will be lost if the quality of fairness required for reporting privilege is lost by intermingling extraneous material with the material for which privilege is claimed.”
“It is plain that there will be no qualified privilege in an account of parliamentary speech if the publisher has so embellished the material that it cannot be said to be a fair and accurate report.”
“What is fair and accurate is to be judged by comparing the words complained of with the document from which the words complained of are said by the defendant to be an extract. Where the complaint is of unfairness arising out of the omission to publish information extraneous to that document, such as another document or comments of the complainant, then that issue is to be decided under s.15(3) (public concern [now public interest] and public benefit) or s.15(1) (malice).” (Emphasis added.)
“The effect of s.15(3) is to give the court trying a defamation action the power and duty to consider a balancing exercise on the particular facts of the case. In effect … Parliament has required the court to carry out a balancing exercise similar to the one which has now become familiar under the HRA, namely art.10 and art.8 (see Re S (A Child) (Identification: Restrictions on Publication)[2005] 1 AC 593 , Lord Steyn at [17]).”
“It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice, and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so.”
“In essence what was being contemplated (although never put into effect) was to blackmail Mr Kozel, to take advantage of difficulties in his private life and to put pressure on him by including his wife in a draft complaint of fraud, alleging or implying infidelity on Mr Kozel’s part, and send it to him and his wife, and to create a scandal by use of a press release referring, inter alia, to a pay off by Gulf to Barzani, the Prime Minister, when nothing of the kind had ever happened.”
“…in May 2006 Dr Hawrami became Minister for National Resources, one of the most important portfolios in the KRG. … Dr Hawrami is a qualified oil engineer with a PhD in oil reserve engineering. He had significant international upstream experience having worked in the oil industry in the UK since 1975. He is agreed, on all sides, to have detailed technical knowledge, to be a man of integrity and someone who would appreciate what was in the best interests of the KRG in considering bids and awarding contracts. In practice it would be he who would decide who would get the award of any contract.”
“In the event ETAMIC was unable to pay its cash calls for expenses in relation to these Blocks. On20 January 2010 , Gulf wrote to ETAMIC holding it in default of its obligations. Gulf then entered into discussions with the KRG in order to reorganise its holdings in the PSCs. As set out in its press release dated10 March 2010 , as part of this reorganisation, the 50% shareholding in Gulf International held by ETAMIC reverted to Gulf. Gulf International paid to the KRG the sums owed by ETAMIC, and the KRG became entitled to Additional Infrastructure Support Payments, amounting to 40% of Gulf’s entitlement to Profit Petroleum in respect of all four PSCs. This was a very substantial reduction in Gulf’s entitlement reducing its share in any Shaikan field profits to between 9 and 18% - and an illustration of the risk involved in this field. Gulf also made a$12 million termination payment to ETAMIC in full and final settlement of any claims, a reasonable price for the certainty of unencumbered rights to the two new blocks.”
“Q. Under the second bullet point it reads: ‘Following default by ETAMIC, GKPI will pay$40 million to the KRG … (Reading to the words) … interest in Sheikh Adi and 40 per cent interest in Ber Bahr. Then the third bullet point: ‘GKP will make a termination payment of$12 million to ETAMIC in full and final settlement of all their rights which is payable within 30 days of completion by GKP of a significant fundraising after Q1 2010.’ Then the final bullet point: ‘The KRG shall also be entitled to receive an additional infrastructure … (Reading to the words)… share of profits in all four production sharing contracts…’”
“i) The governing principle is reasonableness. ii) The intention of the publisher is irrelevant. iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve. iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties. vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense. viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic ‘rogues gallery’ case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases). ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication. x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning. xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership. xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).”
“Dr Hawrami, whilst serving as Minister of Natural Resources in the government of the KRG of the autonomous region of Iraqi Kurdistan, had: a) in November 2007, granted a highly lucrative contract to Gulf Keystone Petroleum (‘GKP’) because of and/or knowing of a secret, corrupt and illegal agreement entered into between Todd Kozel (‘Kozel’) of GKP and the company of Izzedin Berwari (‘Berwari’), a member of the governing Kurdistan Democratic Party (‘KDP’) politburo and a high level and senior public official with connections to the Prime Minister of the KRG (‘the kickback agreement’), whereby potentially huge revenues from the oil concession would be paid by GKP in kickbacks to Berwari’s company for securing the Shaikan Production Sharing Contract (‘PSC’) for GKP; b) in 2010, been privy to a private agreement between GKP and the KRG to treat as void for illegality the kickback agreement just weeks before the UK Bribery Act was passed in 2010, but, corruptly and in violation of a Kurdish oil law, that which [sic] Dr Hawrami had pushed through the Iraqi Kurdistan Parliament, allowed GKP to retain the contract, instead of cancelling the contract by reason of GKP’s corruption, as the oil law required him to do; and c) shortly thereafter, facilitated the secret funnelling of US$12m from GKP, a public company quoted on the London Stock Exchange, to an offshore company secretly connected to Kozel and the KRG, by introducing Kozel to a group of investors operating under the name of Etamic and to the idea of the transaction.”
“there were grounds to investigate whether the Claimant, through his office, had come to know about but failed to properly investigate and act upon an illegal agreement which benefitted a high-ranking member of Iraqi Kurdistan’s ruling party.”
“The questions raised concern the period when Mr Todd Kozel was CEO of Gulf Keystone Petroleum Ltd, with a particular focus on events between 2007 and 2010. This predates the appointment of any of the current board or management team.” [61] “The Company is committed to the highest standards of corporate governance including ensuring we undertake appropriate due diligence and third party professional advice and has an appropriate share dealing code, disclosure and compliance procedures, including for all officers and employees of the Company. In accordance with these standards, the Company considers with all due process any new matters that are supported by credible evidence.” [62] A spokesman for Kozel denied Dabin had played a role in Gulf Keystone securing the oil contract, and stressed that the deal had been voided. [63] Trusts and Lies [64] As Kozel was becoming a very rich man, he met Inga Buividaite, a Lithuanian student and model, then in her early twenties. They began an affair that ended his 18-year marriage to his wife at the time, Ashley. [65] In a January 2012 divorce settlement, Kozel agreed to hand his former wife 23 million shares in Gulf Keystone, worth well over$100 million . But she accused him of delivering three quarters of the shares late, and sued him in Florida. [66] The delay was notable because Gulf Keystone shares peaked on February 20 that year, but their value had begun to plummet by the time Ashley acquired most of them in late February and early March. She alleged that her ex-husband had stalled in order to stash money away via a trade involving a secretive Jersey trust. [67] Ashley Kozel won the case in September 2015, and was awarded$38.5 million . Todd Kozel said he couldn’t pay, so she began hunting for his money through the courts. [68] The lavish lifestyle of Todd Kozel and his new wife, Inga, was swiftly exposed. There were payments for two Hermès “Birkin bags” for 28,000 British pounds ($38,493 ), another 24,000 euros ($28,539 ) to French fashion house Chanel Haute Couture for a black wool dress, and$1.54 million on a diamond and a pair of earrings from Graff Diamonds in New York. [69] The Gulf Keystone chief executive was also claiming major work-related expenses. In his deposition, he admitted to spending nearly$8,000 at a strip club in Zurich, “where we entertain our customers and company members, which is reimbursable.” [70] “When we do it, we take a lot of people and we do it properly,” he said. [71] [Screenshot of an article in the New York Post bearing the caption:] The divorce case became fodder for tabloids like the New York Post. [72] Ashley Kozel’s lawyers also began asking questions about another mysterious company, based in the British Virgin Islands, that had dealings with Gulf Keystone. [73] They suspected her former husband secretly owned the firm, called Etamic Limited, and used it to siphon money from his investors. [74] The company seemed to appear out of the blue in July 2009, when Gulf Keystone suddenly announced it would be handing Etamic — which it described as its new “strategic investment partner” — half of the subsidiary holding its Iraqi Kurdistan assets. [1296, 1297] [75] Etamic was described only as a “private investment fund in the Middle East,” and there was no mention of its owners or directors. Gulf Keystone’s finance director, Ewen Ainsworth, said the fund’s owners had “asked us not to say too much about them,” according to Gulf States Newsletter. [76] There were also no records of the deal. Kozel later claimed that this was because it had been concluded verbally. “It was a strange deal,” he told a London court. [1298, TX 17.12.17, p.72] [77] Minutes of a September 2009 board meeting said the government of Iraqi Kurdistan had approached Kozel with the proposal. [78] John Gerstenlauer, Gulf Keystone’s chief operating officer at the time, told a judge Etamic had been brought to his firm “by Dr Ashti [Hawrami] and The Ministry of Natural Resources and the KRG.” [1296, TX 19.12.12, pp.42-43] [79] Kozel also told the court that Hawrami had “brought the investors and the idea” and that he had then asked his lawyer “to try to put together a structure.” [1296, TX 17.12.12, pp.69-70] [80] Dr. Hawrami’s lawyers strongly deny that he introduced Etamic to Gulf Keystone. “On the contrary, the policy and practice of the KRG prohibit the use of such intermediaries.” [81] In return for obtaining a major stake in the valuable Shaikan oil field, Etamic would help Gulf Keystone acquire rights to two unproven fields in Iraqi Kurdistan, called Sheikh Adi and Ber Bahr. It is not clear how Etamic would do that, or what influence it had in Kurdish oil circles. [TX 19.12.12, pp.29, 49-50] [82] Eight months later, Gulf Keystone said it was ending the relationship with Etamic “following a material default,” and would need to pay the mysterious company$12 million “for them to go away,” as the finance director put it. Gulf Keystone said it was left saddled with further costs, including$40 million owed to the Iraqi Kurdistan government in “infrastructure support payment.”
“6. There shall be a trial of the following preliminary issues (‘the Preliminary Issues Trial’): a. The natural and ordinary meaning of the Article; b. Whether the Article, in the meaning found at subparagraph (a) above is defamatory of the Claimant at common law; and c. Whether the paragraphs of the Article pleaded in the Defendant’s second schedule served pursuant to paragraph 3 of the Order of2 June 2023 , with the exception of the statements at paragraph 2 above, are protected bys.15 of the Defamation Act 1996 . 7. The order and manner in which the issues at paragraphs 6(a)-(c) above are determined at the Preliminary Issues Trial shall be reserved to the Judge hearing the Preliminary Issues Trial upon consideration of the parties’ submissions.” a. The natural and ordinary meaning of the Article; b. Whether the Article, in the meaning found at subparagraph (a) above is defamatory of the Claimant at common law; and c. Whether the paragraphs of the Article pleaded in the Defendant’s second schedule served pursuant to paragraph 3 of the Order of2 June 2023 , with the exception of the statements at paragraph 2 above, are protected bys.15 of the Defamation Act 1996 .